Meghalaya High Court
Mr. Brijender Singh vs . Ms. Sakshi Pandey on 1 March, 2023
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
FA No. 3 of 2022 Date of Decision: 01.03.2023
Mr. Brijender Singh Vs. Ms. Sakshi Pandey
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s)/Appellant(s): Ms. S. Singha, Adv. with
Mr. A.H. Kharwanlang, Adv.
For the Respondent(s) : Mr. S. Sen, Adv. with
Ms. S. Shallam, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Oral:
1. The instant first appeal has been preferred under Section 19 and 10 of the Family Courts Act read with Section 28 of the Hindu Marriage Act, 1955 against the order dated 18.07.2022, passed by the Court of the learned Additional District Judge (East Khasi Hills) in Page 1 of 10 Misc. Case No. 42 (H) 2021 in MAT Divorce Suit No. 12 (H) 2021, whereby the appellant was directed to pay maintenance pendente lite, at the rate of Rs. 65,000/- per month to the respondent herein, from the date she had filed the application for maintenance before the Learned Court below.
2. Before the matter could be taken up on its merits, the maintainability of the instant appeal, has been put to question on the main ground that the Family Courts Act, 1984 has not been implemented in the State of Meghalaya, apart from the other ground that an appeal under Section 28 of the Hindu Marriage Act, does not provide for an appeal from interim orders granting maintenance. As the objections raised deserve consideration, this Court will therefore first examine the maintainability of this appeal.
3. From the side of the appellant, it has been submitted that in terms of Section 1 (2) of the Family Courts Act, the Act extends to the whole of India and as such, there is no question that provisions of the Act, not being applicable to the State of Meghalaya. It has been further submitted that Section 2 (a) of the Family Courts Act defines a Judge and contemplates a Civil Judge, hearing family matters and therefore it is not mandatory, that a physical Family Court exists as per Section 3 of the Act, for the provisions of Family Courts Act to apply. It has also Page 2 of 10 been urged, that though the Family Courts Act, only makes it mandatory for a separate Family Court to be established when an area has a population of more than 1 million, however, Section 3 (1)(b) does not make it mandatory otherwise, and as such the Act, also contemplates the concurrent jurisdiction of a Civil Court acting as a Family Court. In support of this submission, reliance has been placed in the case of Mary Thomas vs. Dr. K.E. Thomas, a full bench decision of the Madras High Court decided on 06.10.1989 in O.S.A. No. 21 of 1989, and also a Suo Motu reference of the High Court of Kerala reported in 2002 SCC OnLine Ker 305.
4. Reference has also been made to the Meghalaya High Court Rules under the Family Courts Act, known as The Family Courts (High Court of Meghalaya) Rules 2013, to counter the challenge to maintainability, as also The Hindu Marriage (High Court of Meghalaya) Rules 2013, which at Section 3(ii) has provided that, Court means the District Court as mentioned in Section 3(b) of the Hindu Marriage Act or the Court created under the Family Courts Act. With regard to the objection to Section 28 of the Hindu Marriage Act 1955, it has been contended that, as the Family Courts Act will be applicable, in terms of Section 20 of the said Act, an interlocutory order under Section 24 of the Hindu Marriage Act is appealable. Page 3 of 10
5. On behalf of the respondent, it has been contended that Section 1(3) of the Act mandates that, the Act will be enforced only after a Notification of the Central Government in the Official Gazette, as to the dates so appointed is published, and that, no such Gazette Notification has been issued enforcing the Act in the State of Meghalaya. It is also submitted that though Section 3(1)(a) makes it imperative for the establishment of the Family Court for a city or town having a population exceeding 1 million, the city of Shillong not having the required population, no Family Court has been established, nor the State has invoked the power under Section 3(1)(d) to establish the Family Court for any area in the State. Other provisions of the Family Courts Act, such as Section 4 on the appointment of Family Court Judges, Section 7 and 8 on the jurisdiction, Section 13 on the right to legal representation and Section 19 dealing with appeal and revision have also been referred to and addressed by the counsel for the respondent. On the Rules as framed by the Meghalaya High Court, it has been contended that though the Rules have been made and notified, the same were incorporated inadvertently in the High Court of Meghalaya Rules on being replicated from the Gauhati High Court Rules, which apply only to the Family Courts established in Assam. It Page 4 of 10 is submitted that; the rules therefore, will be of no consequence as the Family Courts are yet to be established in the State of Meghalaya.
6. Reliance has been placed by the respondent counsel on the case of S.D. Joshi & Ors. vs. High Court of Judicature at Bombay reported in (2011) 1 SCC 252, on the distinction between the Family Courts and the Courts presided by Members of the Higher Judicial Services. With regard to Section 3(ii) of The Hindu Marriage (High Court of Meghalaya) Rules 2013, it has been argued that the definition of District Court given therein, means the Court mentioned in Section 3(b) of the Hindu Marriage Act or Family Courts created under the Family Courts Act, and as the Family Courts Act are yet to be established, it would mean that District Courts would exercise jurisdiction. It has also been submitted that, the Family Courts Act does not contemplate concurrent jurisdiction of a Civil Court acting as a Family Court, as the same would run counter to Section 8 of the Family Courts Act, which provides that on the establishment of Family Courts, all matters pending before the District or Sub-ordinate Courts over which the Family Court has jurisdiction shall stand transferred to the said Family Court. It is emphasized by the counsel for the respondent that in the instant case, the proceedings are pending before a Civil Page 5 of 10 Court, that is the Court of the Additional District Judge which has no authority to exercise its powers and functions as per the Family Court as provided under the Family Courts Act, 1984.
7. Having considered the submissions of the learned counsels for the parties. It would be apposite to first examine the relevant provisions of the Family Courts Act, on the question as to its applicability to the State of Meghalaya. Section 1 of the Act, which provides for the extent and manner of implementation, has provided as follows:
"1. Short title, extent and commencement.--(1) This Act may be called the Family Courts Act, 1984. (2) It extends to the whole of India [***] (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different States".
Establishment of Family Courts is provided in Section 3 and reads as follows:
"3. Establishment of Family Courts.--(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, after consultation with the High Court, and by notification,--
(a) shall, as soon as may be after the commencement of this Act, established for every area in the State comprising city or town whose population exceeds one million, a Family Court;Page 6 of 10
(b) may establish Family Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits".
8. A conjoint reading of the abovementioned sections would show that, though the Act extends to the whole of India, it shall come into force on such date which is to be notified by the Central Government in the Official Gazette. A perusal of the bare Act itself confirms this requirement of Section 1(3) as different States have different dates on which the Act has been brought into force by such notification issued by the Central Government. Meghalaya does not figure in the said list, nor has any notification been issued in this respect. Section 3 more particularly Section 3(1)(b) of the Act, speaks of the establishment of Family Courts for such other areas in the State as may be deemed necessary. This provision allows the establishment of Family Courts, even if the requirement of Section 3(1)(a) is not met that is, a population of over 1 million, in an area comprising a city or town. The above quoted provisions which are essential for implementation of the Act, not being present, it therefore cannot be inferred that, the Page 7 of 10 Family Courts Act has been made applicable. Furthermore, there are no materials to show that, at any point of time the State Government had initiated any action towards implementing the Act, or to establish Family Courts, as per the Act.
9. The position of law in view of the discussion above, being clear as to the fact that, the Family Courts Act has till date yet to come into force in the State of Meghalaya, another aspect as has been urged by the respondents, that it is not a mandatory requirement for the establishment of a physical Family Court under Section 3, for the Act to apply, also cannot be sustained, as this would militate against Section 1(3) which mandates that, the Act will come into force only after it is duly notified by the Central Government. Therefore, the argument that, the Act contemplates the concurrent jurisdiction of a Civil Court acting as Family Court is also misplaced and is disregarded.
10. It is to be noted that, the maintenance pendente lite granted by the Learned Court below, was in terms of Section 24 of the Hindu Marriage Act 1955, against which no appeal is provided, as it is interim in nature, and not a final order in terms of Section 25, which would be appealable under Section 28 of this Act. The instant appeal apart from being preferred under Section 19 of the Family Courts Act, has also been styled to include Section 28 of the Hindu Marriage Act 1955, but Page 8 of 10 however, in view of the express provisions as contained in Section 28, which is quoted hereinbelow, even under Section 28, the Appeal will not be maintainable.
"28. Appeals from decrees and orders.--(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order".
11. A rather interesting feature of this case, notwithstanding the clear non-applicability of the Family Courts Act, 1984 is the fact that, the Meghalaya High Court as per Section 21 of the Family Courts Act, has framed rules as per the stipulation of the said section. These Rules, have been heavily relied upon by the appellant to buttress their stand that, the Family Courts Act is applicable. In this context, the only Page 9 of 10 explanation that is acceptable, as pointed out by the counsel for the respondent is that, with the establishment of the High Court of Meghalaya in 2013, the rules of the earlier jurisdictional High Court that is, the Gauhati High Court were replicated, and by inadvertence the same were incorporated in the rules for the High Court of Meghalaya. This in the considered view of this Court, will have no bearing or impact on the instant Appeal, as with the Act not being enforced, whatever rules made under the rule making provisions of the Act, will be rendered otiose.
12. In view of the discussions and findings rendered above, the Appeal fails on the ground of non-maintainability itself. The authorities placed by the appellant being of no assistance to the case are not referred to or discussed.
13. The instant Appeal accordingly stands dismissed, however, with no order as to costs.
Judge Meghalaya 01.03.2023 "D. Thabah-PS"
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